The Founders and the 2nd Amendment

EDITOR’S NOTE:The following is excerpted from a speech given in Grand Junction, CO on March 23, 2013

The Second Amendment of the United States Constitution states that:

“A well-regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

What does this amendment really mean?

In recent years, people offering answers to that question have often focused on the militia part of the Second Amendment: “A well-regulated militia being necessary for the security of a free state. . .”

But in my view, that’s the wrong place to begin. The militia phrase is what lawyers call a “preamble”—a non-binding explanation of intent. It is not the effective, or operative, part of the amendment. In other words, it is only a guide to interpretation, not the actual law. The actual law is “the right of the people to keep and bear arms shall not be infringed.”

Notice two things about the phrase I just read. First, it refers to “THE right of the people to keep and bear arms.” Like “the freedom of speech” and “the freedom of the press” in the First Amendment. The Founders were referring to a right already existing before the Constitution was ever adopted. In the Founders’ view, it was a natural right, given by God and not to be impaired by government. On the contrary, it was a right that government must guarantee.

Another thing this phrase—THE right to keep and bear arms—implies is that the Founders knew the scope of the right. In other words, they understood what it did and didn’t include. We can understand what it did and didn’t include by examining the history of the Founding. It has always bothered me that so many judges and constitutional writers merely speculate about what First and Second Amendment rights mean, rather than going to the historical records and finding out.

I’ll say more in a moment about what is and isn’t encompassed by the Second Amendment.

So—this phrase refers to “THE right to keep and bear arms.” It also says that this right “shall not be infringed.” What does that mean? On this subject, also, there’s no need to speculate. Because 18th century dictionaries tell us exactly what “infringe” meant.

In this context, the word “infringe” meant to reduce or impair in any way. In other words, government shall not reduce or impair in any way “THE right to keep and bear arms.” Today, political demagogues talk about imposing “common-sense” or “reasonable” restrictions on the right to keep and bear arms. But the Constitution, properly understood, is clear that there are NO permissible restrictions on the right, however much the politicians may think they are “common sense” or “reasonable.”

On the other hand, the Founding-Era record also tells us that not every use of every weapon is part of the right that cannot be infringed. So let’s look now at what the right does and doesn’t include.

History makes it clear that the Second Amendment is designed to serve four principal purposes.

First, it guarantees the states militia power of their own to balance the military power of the federal government;

Second, it promotes the God-given right of personal self defense;

Third, it enables the citizenry to repel foreign invasion; and

Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.

The first purpose—providing a state military balance to federal power—is more important in assessing federal gun control laws than in assessing state gun control laws. Since I’m focusing on the Colorado laws this evening, I’ll discuss here the other three principles. We begin with the right of self-defense.

In order to enable people to defend themselves, the right to keep and bear arms has to include weapons sufficient for that purpose. Which weapons are sufficient for the purpose of self-defense will vary according to changes in technology and in society.

Advocates of gun control tend to be the same sort of people who argue in favor of the idea of a “living Constitution.” Of course, usually when people argue for a “living Constitution,” what they really want is a dead Constitution. Specifically, they want to eliminate almost every constitutional limit on the power of federal politicians and allow those politicians to control almost everything except abortion, which they want the politicians to subsidize.

Yet some of the people who think the Constitution should be manipulated to meet allegedly new conditions take a very different tack when applying the Second Amendment. To them, the Second Amendment, if it protects individual rights at all, should be limited to militia duty with muskets and flintlocks.

But if the Second Amendment is based partly on a right to personal self-defense—and it is—then this narrow view is wrong. The Second Amendment cannot be limited to muskets and flintlocks any more than the power of Congress to regulate interstate commerce can be limited to trade in sailing ships and horse-drawn wagons. Even an old-fashioned constitutionalist like myself believes that Congress can use the Commerce Power to regulate railroads and air travel, although those forms of travel did not exist when the Constitution was ratified. Otherwise, the Commerce Power would mean nothing. For the same reason, the right to keep and bear arms must include the free use of modern technology appropriate for self-defense.

It is true that when the Second Amendment was ratified, a standard capacity 30 round magazine would not be necessary for personal self-defense. But now, when when mass murderers and terrorists have modern weapons, citizens need standard capacity magazines for self defense. They also need handguns and a range of other weapons. That is one reason the Second Amendment protects their use today.

In addition to self-defense, the Second Amendment was adopted to enable citizens to defend against tyrants foreign and domestic. At this point it becomes helpful to turn to the Second Amendment’s preamble: The Amendment seeks a “well regulated militia.” In 18th century language, “a well regulated militia” meant a “well-trained militia.”

The “militia” that the Second Amendment says should be well trained consists of all able bodied men. Article XVII, Section 1 of the Colorado Constitution expresses this well: It says, “The militia of the state shall consist of all able-bodied male residents of the state between the ages of eighteen and forty-five years; except, such persons as may be exempted by the laws of the United States, or of the state.” That was pretty much the American Founders’ view of the matter. Read Madison’s language in Number 46 of The Federalist Papers, and you’ll see what I mean. It is pretty much the understanding of our fathers and grandfathers when gun use and safety was commonly taught in public school.

So according to the Second Amendment, we want all men of military age well trained in the use of weapons. And why is this? Because, as the preamble tells us, this is “necessary for the security of a free state.” By “a free state,” the Constitution means “a free country.”

So all men of military age should be well-trained in weapons so that America survives as a free country.

Well, what weapons? Obviously, the muskets and single-shot rifles in use when the Second Amendment was adopted are no longer sufficient to do the job. Today the Second Amendment protects a range of weapons appropriate for citizen militias resisting foreign invaders and tyrannical politicians.

Now at this point someone favoring gun control always comes up with the line, “Well, does that mean that citizens have the right to hoard naval artillery and atomic bombs?” And the answer is “No, the Second Amendment doesn’t encompass naval artillery or atomic bombs any more than the First Amendment includes falsely shouting ‘fire’ in a crowded theater.” The language and purposes of the Second Amendment, as well as its history, tell us what it excludes as well as what it includes. Naval artillery and atomic bombs are not customary for personal self-defense and they never have been militia weapons used for repelling foreign invaders and domestic tyrants. In fact, the Second Amendment itself refers to the right to bear arms—that is, to carry arms—referring to weapons that normally are carried by a human being.

Let’s focus for a minute on another purpose of the Second Amendment: protecting against domestic tyrants. We tend not to discuss this purpose much, but it might possibly have some relevance to the authoritarian types who currently dominate the Colorado legislature.

Politicians in America right now tend to fall into either of two groups. There are those who generally favor freedom but also strongly support law enforcement. And there are those who are skeptical toward law enforcement but nevertheless seek to expand the power of government in many areas of life, and particularly in economic affairs. It’s not intuitively obvious which group should be for gun control. You might think that those who favor economic freedom might be for gun control as a way of backing law enforcement. Or you might think those who favor more economic regulation might be against gun control because they are skeptical about law enforcement and might not want to give the police a monopoly over weapons.

But we all know what the situation is in real life: In real life, the biggest advocates of gun control are precisely those who want to lord it over the rest of us in nearly every other aspect of life.

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Why is this? Well, reflect on the fact that the modern era of gun control began with the federal Gun Control Act of 1968. This law—if an unconstitutional act can be called a “law”—was passed in the wake of some ghastly political assassinations. I don’t think this is a coincidence. It’s reasonable to assume that those who wish to fasten more and more fetters on the productive people of American society might consider that one day they might go too far, and face physical and armed opposition.

Indeed, just the fact that many citizens are armed may have a moderating influence on authoritarian politicians.

The author of the first draft of the Second Amendment was James Madison. Madison’s favorite book of political theory was Aristotle’s Politics. Several times in that work Aristotle makes the point that all citizens should have weapons, and that only those with weapons should be citizens. Otherwise, he wrote, those that are disarmed are the slaves of those who are armed.

The point was made another way by Jean Louis DeLolme, a Swiss jurist. DeLolme wrote a book on the English constitution that we know Madison read, and that was a source for other American Founders as well. In speaking of the need for an armed citizenry, DeLolme wrote:

The Power of the People is not when they strike, but when they keep in awe. It is when they can overthrow every thing, that they never need to move; and Manlius [a Roman consul] included all in four words, when he said to the People of Rome, Ostendite bellum, pacem habebitis. [Look toward war, and you shall have peace].

The widespread ownership of firearms, therefore, helps to preserve freedom, usually without the need for armed violence. When politicians limit or harass gun ownership, the threat is far wider than the threat to guns alone. By reducing the number of citizens who are armed, gun control emboldens the authoritarian politicians to control everything else we do, thereby imperiling freedom generally.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See: www.constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.